EXHIBIT 4.4
TECHNICAL OLYMPIC USA, INC.
$150,000,000
10 3/8% Senior Notes Due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 25, 2002
Salomon Smith Barney Inc.
Deutsche Bank Securities Inc.
Fleet Securities, Inc.
As Representatives of the Initial Purchasers
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Technical Olympic USA, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), proposes to issue and sell to certain
purchasers (the "Initial Purchasers"), upon the terms set forth in a purchase
agreement, dated June 14, 2002 (the "Purchase Agreement"), $150,000,000
aggregate principal amount of its 10 3/8% Senior Subordinated Notes Due 2012
(the "Notes") relating to the initial placement of the Notes (the "Initial
Placement"). The Notes will be unconditionally guaranteed (the "Guarantees" and
together with the Notes, the "Securities") on a senior subordinated basis by
each of the Company's direct and indirect domestic subsidiaries set forth on the
signature page hereto (the "Guarantors"). To induce the Initial Purchasers to
enter into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company and the Guarantors agree with you for your benefit and
the benefit of the holders from time to time of the Securities (including the
Initial Purchasers) and the New Securities (as defined herein) (each a "Holder"
and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified
Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchasers have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of June 25, 2002, between the Company, the Guarantors and Wells Fargo Bank
Minnesota, National Association, as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
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"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and/or New Securities, as applicable,
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Notes" shall mean debt securities of the Company, guaranteed by
the Guarantors, identical in all material respects to the Notes (except that the
cash interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.
"New Securities" shall mean debt securities of the Company and the
related guarantees of the Guarantors, identical in all material respects to the
Securities (except that the cash interest and interest rate step-up provisions
and the transfer restrictions shall be modified or eliminated, as appropriate)
and to be issued under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest and interest
rate step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Notes and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
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"Related Guarantees" shall mean the guarantees of the Guarantors to be
issued under the Indenture or the New Securities Indenture in respect of New
Notes.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 3 hereof which covers some or all of the Securities and/or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities and
New Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New
Securities in connection with an offering thereof under a Registration
Statement.
2. Registered Exchange Offer.
(a) The Company and the Guarantors shall prepare, at their cost,
and, not later than 90 days following the date of the original issuance of
the Securities (or if such 90th day is not a Business Day, the next
succeeding Business Day), shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company and the Guarantors shall use their best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act not
later than 150 days following the date of the original issuance of the
Securities (or if such 150th day is not a Business Day, the next succeeding
Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities for
New Securities (assuming that such Holder is not an Affiliate of the
Company, acquires the New Securities in the ordinary course of such
Holder's business, has no arrangements with any Person to participate in
the distribution of the New Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange
Offer) and to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
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(c) In connection with the Registered Exchange Offer, the Company
and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days and not more than 45 days after the date notice thereof
is mailed to the Holders (or, in each case, longer if required by
applicable law);
(iii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it
is available for sales of New Securities by Exchanging Dealers or the
Initial Purchasers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are
conducting the Registered Exchange Offer in reliance on the position
of the Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988), Morgan Stanley and Co., Inc. (pub. avail. June 5,
1991); and (B) including a representation that the Company and the
Guarantors have not entered into any arrangement or understanding with
any Person to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of their information
and belief, each Holder participating in the Registered Exchange Offer
is acquiring the New Securities in the ordinary course of business and
has no arrangement or understanding with any Person to participate in
the distribution of the New Securities; and
(vii) comply in all material respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
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(ii) deliver to the Trustee for cancellation in accordance
with Section 5(s) all Notes so accepted for exchange; and
(iii) cause the Trustee or New Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities a principal amount of New Notes equal to the principal
amount of the Notes of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Morgan Stanley and Co., Inc. (pub. avail.
June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993 and similar no-action letters; and (y) must comply with
the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction which must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act if the resales are of New Securities obtained by such Holder
in exchange for Securities acquired by such Holder directly from the
Company or one of its Affiliates. Accordingly, each Holder participating in
the Registered Exchange Offer shall be required to represent to the Company
and the Guarantors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities
or the New Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Company or any
of the Guarantors or if it is an Affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Act
to the extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the
New Securities; and
(v) if such Holder is a Broker-Dealer, that it will receive
New Securities for its own account in exchange for Securities that
were acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with
any resale of such New Securities.
(f) If any Initial Purchaser determines that it is not eligible
to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at
the request of such Initial Purchaser, the Company and the Guarantors shall
issue and deliver to such Initial Purchaser or the
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Person purchasing New Securities registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Initial Purchaser,
in exchange for such Securities, a like principal amount of New Notes and
Related Guarantees. The Company and the Guarantors shall use their
reasonable efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for such New Securities as for New Securities issued pursuant
to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Company determines upon advice of
its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other
reason the Exchange Offer Registration Statement is not declared effective
within 150 days following the date of the original issuance of the
Securities or the Registered Exchange Offer is not consummated within 180
days following the date of the original issuance of the Securities; (iii)
any Initial Purchaser so requests with respect to Securities that are not
eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered
Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is not
eligible to participate in the Registered Exchange Offer or does not
receive freely tradeable New Securities in the Registered Exchange Offer
other than by reason of such Holder being an Affiliate of the Company (it
being understood that the requirement that a participating Broker-Dealer
deliver the prospectus contained in the Exchange Offer Registration
Statement in connection with sales of New Securities shall not result in
such New Securities being not "freely tradeable"); or (v) in the case of
any Initial Purchaser that participates in the Registered Exchange Offer or
acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being
understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of New Securities
acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable;" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other
trading activities shall not result in such New Securities being not
"freely tradeable") the Company and the Guarantors shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantors, at their cost, shall as
promptly as practicable, file with the Commission and thereafter shall
use their best efforts to cause to be declared effective under the Act
a Shelf Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the Holders
thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than
an Initial
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Purchaser) shall be entitled to have the Securities or New Securities
held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and provided further, that with
respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the
Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of their obligations under this subsection
with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed
by the provisions herein applicable to, a Shelf Registration
Statement.
(ii) the Company and the Guarantors shall use their best
efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order
to permit the Prospectus forming part thereof to be usable by Holders
for a period the earlier of (A) the time when all of the Securities or
New Securities, as applicable, covered by the Shelf Registration
Statement can be sold pursuant to Rule 144 without limitation under
clauses (c), (e), (f) and (h) of Rule 144, (B) the date on which all
the Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement, and (C) the date two years from the date the
Shelf Registration Statement is declared effective by the Commission
(in any such case, such period being called the "Shelf Registration
Period"). The Company and the Guarantors shall be deemed not to have
used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if they voluntarily take any
action that would result in Holders of Securities or New Securities
covered thereby not being able to offer and sell such Securities or
New Securities during that period, unless (A) such action is required
by applicable law; or (B) such action is taken by the Company and the
Guarantors in good faith and for valid business reasons (not including
avoidance of the Company's and the Guarantors' obligations hereunder),
including the acquisition or divestiture of assets, so long as the
Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission; and (B) not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
4. Special Interest. If (a) on or prior to the 90th day following the
original issue date of the Securities, neither the Exchange Offer Registration
Statement nor the Shelf
8
Registration Statement has been filed with the Commission, (b) on or prior to
the 150th day following the original issue date of the Securities, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been declared effective, (c) on or prior to the 180th day following the original
issue date of the Securities, neither the Registered Exchange Offer has been
consummated nor the Shelf Registration Statement has been declared effective, or
(d) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of
Securities or New Securities in accordance with and during the periods specified
in this Agreement (each such event referred to in clauses (a) through (d), a
("Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Securities and the New Securities (in addition to the
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such rate exceed 1.00% per annum.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a copy of any Exchange
Offer Registration Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents incorporated
by reference therein after the initial filing) and shall use their
commercially reasonable best efforts to reflect in each such document,
when so filed with the Commission, such comments as you reasonably
propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex
B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
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(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or New
Securities, as applicable, pursuant to the Shelf Registration
Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company and the Guarantors shall advise you, the Holders
of Securities or New Securities covered by any Shelf Registration Statement
and any Exchanging Dealer or Initial Purchaser under any Exchange Offer
Registration Statement that has provided in writing to the Company and the
Guarantors a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder, Exchanging Dealer or Initial
Purchaser, shall confirm such advice in writing (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend
the use of the Prospectus until the Company and the Guarantors shall have
remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Guarantors of any
notification with respect to the suspension of the qualification of
the Securities or New Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
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(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the Securities or New
Securities therein for sale in any jurisdiction at the earliest possible
time.
(e) The Company and the Guarantors shall furnish to each Holder
of Securities or New Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities or New Securities
covered by any Shelf Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Company and the Guarantors consent
to the use of the Prospectus or any amendment or supplement thereto by each
of the selling Holders of Securities or New Securities in connection with
the offering and sale of the Securities or New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer or Initial Purchaser which so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company and the Guarantors shall promptly deliver to each
Initial Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by any
Initial Purchaser, any Exchanging Dealer and any such other Person that may
be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by
the
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Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering
of Securities or New Securities pursuant to any Registration Statement, the
Company and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in
no event shall the Company and the Guarantors be obligated to qualify to do
business in any jurisdiction where they are not then so qualified or to
take any action that would subject them to service of process in suits or
taxation, other than those arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders of Securities and New Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or
Securities to be issued or sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantors shall promptly
prepare a post-effective amendment to the applicable Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers or
Exchanging Dealers, the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the giving of
a notice of suspension pursuant to Section 5(c) to and including the date
when the Initial Purchasers, the Holders of the Securities or New
Securities and any known Exchanging Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number for
the Securities or the New Securities, as the case may be, registered under
such Registration Statement and provide the Trustee with printed
certificates for such Securities or New Securities, in a form eligible for
deposit with The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all
applicable rules and regulations of the Commission and shall make generally
available to their security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
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(n) The Company and the Guarantors shall cause the Indenture or
the New Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
Securities or New Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of such Securities as the Company
and the Guarantors may from time to time reasonably require for inclusion
in such Registration Statement. The Company and the Guarantors may exclude
from such Shelf Registration Statement the Securities or New Securities of
any Holder that fails to furnish such information within a reasonable time
after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall enter into such agreements and take all other
appropriate actions (including if requested an underwriting agreement in
customary form) in order to expedite or facilitate the registration or the
disposition of the Securities or New Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any,
with respect to all parties to be indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall:
(i) make reasonably available for inspection by the Holders
of Securities or New Securities to be registered thereunder, any
Underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by the Holders
or any such Underwriter, attorney, accountant or agent in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such Underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
Holders of Securities or New Securities registered thereunder and the
Underwriters, if any, in
13
form, substance and scope as are customarily made by issuers to
Underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities or New Securities registered thereunder
and the Underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company and the Guarantors shall upon the request of an Exchanging Dealer:
(i) make reasonably available for inspection by such Initial
Purchaser or Exchanging Dealer, and any attorney, accountant or other
agent retained by such Initial Purchaser or Exchanging Dealer, all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees
to supply all relevant information reasonably requested by such
Initial Purchaser or Exchanging Dealer or any such attorney,
accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided,
however, that any information that is designated in
14
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such
Initial Purchaser or Exchanging Dealer or any such attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to such
Initial Purchaser or Exchanging Dealer, in form, substance and scope
as are customarily made by issuers to Underwriters in primary
underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to such Initial
Purchaser or Exchanging Dealer and their respective counsel, addressed
to such Initial Purchaser or Exchanging Dealer, covering such matters
as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by
such Initial Purchaser or Exchanging Dealer or their respective
counsel;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such
Initial Purchaser or Exchanging Dealer, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if requested by
such Initial Purchaser or Exchanging Dealer or their respective
counsel in lieu of a "cold comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35, covering matters
requested by such Initial Purchaser or Exchanging Dealer or their
respective counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or Exchanging Dealer or
their respective counsel, including those to evidence compliance with
Section 5(k) and with conditions customarily contained in underwriting
agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section if so requested shall be performed at close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the Exchange
Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities, the
Company shall mark, or caused to be marked, on the Securities so exchanged
that such Securities are being canceled in
15
exchange for the New Securities. In no event shall the Securities be marked
as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their commercially
reasonable best efforts to confirm the ratings of the Securities will apply
to the Securities or the New Securities, as the case may be, covered by a
Shelf Registration Statement.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or New Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the
meaning of the Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc.) thereof, whether as a Holder of
such Securities or New Securities or as an Underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such Broker-Dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities or New
Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of Underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(v) The Company and the Guarantors shall use their commercially
reasonable best efforts to take all other steps necessary to effect the
registration of the Securities or the New Securities, as the case may be,
covered by a Registration Statement.
6. Registration Expenses. The Company and the Guarantors shall bear
all expenses incurred in connection with the performance of their obligations
under Sections 2, 3 and 5 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable
fees and disbursements of counsel acting in connection therewith if such Initial
Purchaser shall resell Securities or New Securities pursuant to the prospectus
contained such Exchange Offer Registration Statement.
16
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally, agree
to indemnify and hold harmless each Holder of Securities or New Securities,
as the case may be, covered by any Registration Statement (including each
Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 5(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each
Person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all Losses, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantors
will not be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company and the Guarantors by or on behalf of any such
Holder specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company and the Guarantors may
otherwise have.
The Company and the Guarantors also, jointly and severally, agree to
indemnify or contribute as provided in Section 7(d) to Losses of any Underwriter
of Securities or New Securities, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such Underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 7(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of Securities or New Securities covered by a
Registration Statement (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless the
Company and the Guarantors, each of their directors, officers, employees
and agents and each Person who controls the Company or any of the
Guarantors within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Guarantors
to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company and the Guarantors by or
on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
17
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding. An indemnifying party shall
not be liable under this Section 7 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent is
consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or
18
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party may
be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however,
that in no case shall any Initial Purchaser or any subsequent Holder of any
Security or New Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that
was exchangeable into such New Security, as set forth on the cover page of
the Final Memorandum, nor shall any Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to
the securities purchased by such Underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and
such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Guarantors shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Memorandum and (y) the total amount of
additional interest that the Company and the Guarantors were not required
to pay as a result of registering the Securities or New Securities covered
by the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the
Final Memorandum, and benefits received by any other Holders shall be
deemed to be equal to the value of receiving Securities or New Securities,
as applicable, registered under the Act. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to, among other things, whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the
other hand, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement
or omission. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each Person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such
Holder, and each Person who controls the Company or any of the Guarantors
within the meaning of either the Act or the Exchange Act and each officer,
employee, agent or
19
director of the Company or any of the Guarantors who would be entitled to
indemnity under this Agreement shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company and the Guarantors or any of the officers, directors or
controlling Persons referred to in this Section hereof, and will survive
the sale by a Holder of Securities or New Securities covered by a
Registration Statement.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees
to sell such Person's Securities or New Securities, as the case may be, on
the basis reasonably provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements; and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities); provided
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or New Securities, as the case
may be, being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
20
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Salomon Smith Barney Inc;
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at its or
their address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities or New Securities. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of Securities and
the New Securities, and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
14. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
16. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
21
18. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each of the Company
and the Guarantors (i) acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corp. (and any successor entity), as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
federal or state court in the State of New York or brought under federal or
state securities laws, and acknowledges that CT Corp. has accepted such
designation, (ii) submits to the nonexclusive jurisdiction of any such court in
any such suit or proceeding, and (iii) agrees that service of process upon CT
Corp. and written notice of said service to the Company shall be deemed in every
respect effective service of process upon it in any such suit or proceeding. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corp. in full force and effect
so long as any of the Securities shall be outstanding.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
TECHNICAL OLYMPIC USA, INC.
By: /s/ TOMMY L. McADEN
-----------------------------------------
Name: Tommy L. McAden
Title: Vice President - Finance and
Administration and Chief Financial
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
SALOMON SMITH BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
FLEET SECURITIES, INC.
By: SALOMON SMITH BARNEY INC.
By: /s/ STEPHEN CUNNINGHAM
-------------------------------
Name: Stephen Cunningham
Title: Director
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
23
SUBSIDIARY GUARANTORS:
ADLER REALTY CO.
ADRO CONST., INC.
BANYAN TRAILS, INC.
ENGLE HOMES DELAWARE, INC.
ENGLE HOMES FINANCING, INC.
ENGLE HOMES REALTY, INC.
ENGLE HOMES, INC.
ENGLE HOMES/ARIZONA CONSTRUCTION, INC.
ENGLE HOMES/ARIZONA, INC.
ENGLE HOMES/ATLANTA, INC.
ENGLE HOMES/BROWARD, INC.
ENGLE HOMES/COLORADO, INC.
ENGLE HOMES/GEORGIA, INC.
ENGLE HOMES/GULF COAST, INC.
ENGLE HOMES/JACKSONVILLE, INC.
ENGLE HOMES/LAKE BERNADETTE, INC.
ENGLE HOMES/NORTH CAROLINA, INC.
ENGLE HOMES/ORLANDO, INC.
ENGLE HOMES/PALM BEACH, INC.
ENGLE HOMES/PEMBROKE, INC.
ENGLE HOMES/SOUTHWEST FLORIDA, INC.
ENGLE HOMES/TEXAS, INC.
ENGLE HOMES/VIRGINIA, INC.
GREENLEAF HOMES, INC.
NEWMARK FINANCE AFFILIATE, LTD
NEWMARK FINANCE CORPORATION
NEWMARK HOME CORPORATION
NEWMARK HOMES BUSINESS TRUST
NEWMARK HOMES L.P.
NEWMARK HOMES PURCHASING, L.P.
NHC HOMES, INC.
NMH INVESTMENTS, INC.
PACIFIC UNITED DEVELOPMENT CORP.
PACIFIC UNITED L.P.
PEMBROKE FALLS REALTY, INC.
PREFERRED BUILDERS REALTY, INC.
PREFERRED HOME MORTGAGE COMPANY
PRESTIGE ABSTRACT & TITLE, LLC
PROFESSIONAL ADVANTAGE TITLE, LTD.
PUDC, INC.
SILVERLAKE INTERESTS, L.C.
ST. TROPEZ AT BOCA GOLF, INC.
TAP ACQUISITION CO.
TECHNICAL MORTGAGE, L.P.
THE ADLER COMPANIES, INC.
TM INVESTMENTS, L.L.C.
UNIVERSAL LAND TITLE AGENCY, INC.
UNIVERSAL LAND TITLE, INC.
UNIVERSAL LAND TITLE INVESTMENT #1, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #2, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #3, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #4, L.L.C.
UNIVERSAL LAND TITLE OF SOUTH FLORIDA, LTD.
UNIVERSAL LAND TITLE OF TEXAS, INC.
UNIVERSAL LAND TITLE OF THE PALM BEACHES, LTD.
UNIVERSAL LAND TITLE OF VIRGINIA, INC.
By: /s/ Tommy L. McAden
------------------------------------------
Name: Tommy L. McAden
Title: Vice President - Finance and
Administration
24
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchasers have been
sold pursuant hereto, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
25
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
26
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business one year after the Expiration Date or such shorter period as
will terminate when all New Securities held by Exchanging Dealers or Initial
Purchasers have been sold pursuant hereto, it will make this Prospectus, as
amended or supplemented, available to any Broker-Dealer for use in connection
with any such resale. In addition, until __________, 200__, all dealers
effecting transactions in the New Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of New
Securities by brokers-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchasers have been sold pursuant hereto, the Company and the
Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
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ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
----------------------------------
Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
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